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CASE NO.: Appeal (civil) 2490-2491  of  1996

PETITIONER: U.P. SHIA CENTRAL BOARD OF WAKF & ORS.

       Vs.

RESPONDENT: U.P. SUNNI CENTRAL BOARD OF WAKF & ORS.

DATE OF JUDGMENT:       01/05/2001

BENCH: S. Rajendra Babu & D.P. Mohapatra

JUDGMENT:

D.P. MOHAPATRA, J. L...I...T.......T.......T.......T.......T.......T.......T..J

   These  appeals filed by the U.P.  Shia Central Board  of Wakf  through its Secretary (for short the Shia Wakf Board) and  some  other  persons of the sect by special  leave  are directed  against  the  order passed by the  Allahabad  High Court  on  2nd  September, 1994 disposing  of  two  Revision Petitions,  C.R.No.284/92  filed  by the  U.P.Sunni  Central Board of Wakf (for short the Sunni Wakf Board) through its Secretary  and  some  other persons of the  sect  and  Civil Revision  No.255/92  filed by the Shia Wakf Board) and  some other persons of the sect.

   The  dispute  raised in the case relates to the  mosque, Ahnaf  Bar  Taley Pura Chhanga Kiyari Tola, Maunath  Bhanjan and  its  Sehan and the Imam Chowk, registered as a Wakf  by the U.P.  Shia Central Board of Wakf.  Aggrieved by the said registration  the  Sunni Board through its Secretary made  a reference  to  the Muslim Wakf Tribunal, Azamgarh which  was registered  as suit No.154/88.  The Controller Shia  Central Board of Wakf and two others were cited as defendants in the proceeding.   The  prayer  in the plaint was  for  an  award declaring  the  property  in  the suit to  be  a  Shia  Wakf property  and  not a Sunni Wakf property and to declare  its registration  as  null  and void, and  further  to  restrain defendants from interfering with or disturbing in any manner with possession, administration, management and control over the property by the plaintiffs.

   The  gist  of the case pleaded by the plaintiff is  that the  mosque  and  its  sehan including the  Imam  Chowk  was constructed  by  the  ancestors  of Late  Abdul  Salam  with efforts  of his grand father Md.  Azal Bilal.  The grave  of Md.  Azal Bilal lies within the compound of the mosque.  The mosque  including sehan and Imam Chowk have always  remained under  control and management of the Sunni sect of  Muslims. Members  of the said sect had always called Azan in the said mosque  and  the congregation prayer have been led by  Sunni Pesh-e-Imam.    Sunni  Mulims  have   been   attending   the congregation  in  the mosque and the sehan.  Members of  the

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sect  have been looking after the maintenance of the  mosque and  its properties.  On the application made by Members  of the  Sunni  sect  of Muslims the Wakf  Board  after  inquiry registered the mosque, its sehan and the Imam Chowk as Sunni Wakf in 1980.

   When  in  May 1978 certain works of  reconstruction  and additions  in the mosque were being carried on by the  Sunni Muslims  of the locality including the plaintiff No.2,  some Shia  muslims of the same locality including defendant  no.3 tried  to  stop  the work by filing suit No.246/78  (Zia  Ul Hasan  vs.   Md.Ayub  and  ors.)  in  the  Court  of  Munsif Mohammadabad  Gohna,  District  Azamgarh.    The  suit   was subsequently  withdrawn.   The  plaintiff alleged  that  the defendants  surreptitiously  got  the mosque and  its  sehan registered  in the office of the Shia Wakf Board behind  the back of the plaintiffs.  In the proceeding under Section 145 Cr.P.C.   initiated  in  March,  1988 in the  Court  of  the Sub-Divisional  Magistrate No.96/11 of 1988 it was disclosed that  the mosque and its property have been registered as  a Wakf under the Shia Wakf Board.  On coming to know about the action  of the defendants in the matter the plaintiffs filed the suit within 90 days from the date of knowledge about the order of registration dated 30th October, 1978.

   The  defendants refuted the claim of the plaintiffs that the  mosque  and its sehan and the Imam Chowk constituted  a Sunni Wakf.  They claimed that the mosque and its properties were  Shia  Wakf and were rightly registered as such by  the Shia Wakf Board.

   The  Tribunal  by  its  judgment dated  20th  May,  1992 allowed   the  claim  of  the   plaintiffs  in  part.    The registration  of the mosque in question along with its sehan by  the Shia Wakf Board was declared to be null and void and accordingly set aside.  In respect of the Imam Chowk and its sehan  the registration was held to be valid.  The relief of injunction  was granted to the plaintiff only in respect  of the  management,  supervision and control of the  mosque  in question.  It was further made clear by the Tribunal that no injunction  was granted in respect of the offering of  Namaz by  the  defendants in the mosque.  Being aggrieved  by  the said  judgment  both  the parties filed  Revision  Petitions before the High Court, as noted earlier.

   The High Court in its Judgment dated 2nd September, 1994 dismissed  the  Civil Revision No.255/92 filed by  the  Shia Wakf  Board and allowed the C.R.No.284/92 filed by the Sunni Wakf  Board  relating  to the Imam Chowk  and  remanded  the matter  to the Tribunal for fresh trial in the light of  the observations made in the Judgment.

   Hence these appeals by the Shia Wakf Board.

   The  main  thrust of the arguments of Shri Sunil  Gupta, learned   counsel  for  the   appellants  were  against  the maintainability of the reference to the Tribunal.  According to  Shri  Gupta  the essence of the dispute  raised  in  the plaint  is whether the mosque, its sehan and the Imam  Chowk were  the  properties  of the Sunni sect or the  Shia  sect. Such a dispute, Shri Gupta submits, does not come within the purview  of section 29(8) of the Uttar Pradesh Muslim  Wakfs Act,  1960  (for  short  the  Act).   It  is  the  further submission  of  Shri  Gupta  that  in  the  absence  of  any notification  by the Commissioner under section 6(4) of  the

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Act  a reference under section 8(1) is not maintainable.  It is  also the submission of Shri Gupta that under the proviso to  section  8(1) which controls the main provision  of  the section, the dispute is barred by limitation.

   The  Act provides for public governance,  administration and  supervision of certain classes of Wakf in the State  of U.P.  The Act applies to all Wakfs whether created before or after  its  commencement  and  any   part  of  the  property comprised in Wakfs situated in the State of U.P.  In section 3(3)  Commissioner  is defined to mean a  Commissioner  of Wakfs appointed by the State Government under section 4.  In Section  3(11)  Wakf  is  defined to  mean  the  permanent dedication  or  grant  of  any   property  for  any  purpose recognised by the Muslim Law or usage as religious, pious or charitable,  and includes wakfs-alal-aulad to the extent  to which  the  property  is dedicated or granted for  any  such purpose  as  aforesaid and wakf by user;  and wakif  means the person who makes such dedication or grant.

   Wakf  property  as defined in section  3(12)  includes offerings made at a shrine or tomb or imambara.

   Section 6 makes the provision regarding Survey of Wakfs. It  provides  that  the Commissioner of  wakfs  shall  after making such inquiries as he may consider necessary ascertain and  determine  the number of all wakfs in the area  showing the  Shia wakfs and Sunni wakfs separately;  the nature  and object  of  each  wakf;  the gross income  of  the  property comprised  in each wakf;  amount of revenue, cesses,  rates, taxes  and surcharge payable to the Government etc.  In  the proviso to sub-section (2) of section 6 it is laid down that where  there is a dispute as to whether a particular wakf is a Shia Wakf or Sunni Wakf and there are clear indications in the  recitals of the deed of wakf as to the sect to which it pertains, such dispute shall be decided on the basis of such recitals.   In  sub-section  (4) of section 6 a  mandate  is issued  to the Commissioner, the Additional Commissioner  to submit  his  report  of enquiry containing  the  particulars mentioned  in  sub-section (2) to each of the Board and  the State Government, and the State Government shall, as soon as possible  notify the same in the official gazette the  wakfs relating  to  particular sect, to which, according  to  such report,  the  provisions  of this Act apply.  Section  8  on which much reliance is placed by the learned counsel for the appellants is quoted hereunder:  Section:8

   (1)  if any dispute arises whether a particular property is  wakf property or not or whether a wakf is a Shia wakf or Sunni wakf, the Board concerned or the mutawalli of the wakf or  any  person interested therein, may, in accordance  with the   provisions  of  this  Act,   refer  the  dispute   for adjudication to the Tribunal:

   Provided  that no such dispute shall be entertained by a Tribunal  after the expiry of one year from the date of  the publication  of  the list of wakfs under sub-section (4)  of Section 6.

   (2)The  Commissioner,  Additional Commissioner of  Wakfs and  Assistant  Commissioner  of Wakfs shall not be  made  a party to any proceeding under sub-sction (1).

   The  next provision which is relevant for the purpose of the  Act  is  section  29 which is  in  Chapter  III  titled

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Registration of Wakfs In Section 29(1) it is declared that every  other  wakf, whether subject to this Act or  not  and whether  created  before or after the commencement  of  this Act,  shall be registered at the office of the Board of  the sect to which the wakf belongs.

   In  sub-section (2) it is provided that application  for registration  shall be made by the mutawalli within 3 months of  his entering into possession of Wakf property,  provided that  such  application  may  be made by  the  wakf  or  his descendants  or  a  beneficiary of the wakf  or  any  Muslim belonging to the sect to which the Wakf belongs.

   Sub-sections  (3), (4) and (5) deal with the contents of the application for registration and the manner in which the application  shall  be filed.  Sub-sections (7) & (8)  which are  relevant  for  the purpose of the  case  are  extracted hereunder:

   7.   On receipt of an application for registration, the Board  may,  before the registration of the wakf, make  such inquiries as it thinks fit in respect of the genuineness and validity  of  the  application and the  correctness  of  any particular therein, and, when the application is made by any person   other  than  the   person  administering  the  wakf property, the Board shall, before registering the wakf, give notice  of  the application to the person administering  the wakf  property  and shall after affording him  a  reasonable opportunity  of being heard, pass such order as it may  deem fit.

   (8)  Any person aggrieved by an order of the Board under sub-section(7)  may, by application within 90 days from  the date  of that order, refer the dispute to the Tribunal which shall give its decision thereon.

   From  the  conspectus of the statutory provisions  noted above,  the  scheme of the statute is clear that in case  of any  dispute, whether a particular property is Wakf property or  not  or whether a Wakf is a Shia Wakf or Sunni Wakf  the Board  concerned or the mutawalli of the Wakf or any  person interested in the Wakf may in accordance with the provisions of  the  law  refer  the dispute  for  adjudication  to  the Tribunal.  Under the proviso to sub-section(1) a restriction is  imposed  that no such dispute shall be entertained by  a Tribunal  after  the  expiry of one year from  the  date  of publication  of  the list of Wakfs under sub- section(4)  of Section  6.   On  a  plain   reading  of  the  provision  in sub-section(1)  it  is  clear that it is expressed  in  wide terms  taking  within its fold different types  of  disputes relating  to a Wakf and its properties.  The statute enables different  classes of persons interested in the Wakf and its properties  like the Board concerned, the mutawalli and  any person  interested in the Wakf to raise a dispute.  The only restriction  sought  to be placed on such a reference is  in the  proviso, wherein it is laid down that after the list of Wakfs  is published by the Commissioner under sub-section(4) of  section 6 of the Act then the dispute has to be made  to the  Tribunal  within one year from the date of  publication and  the Tribunal is precluded from entertaining the dispute after the expiry of one year.  The section does not make any provision  that  the publication of a list of Wakfs  by  the Commissioner  under  section  6  is a sine  qua  non  for  a reference  under section 8(1) of the Act.  All that is  laid down  in the proviso to sub-section(1) is that after a  list

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of  Wakfs  has  been published by the  Commissioner  then  a dispute  as  contemplated  in the proviso has to  be  raised within one year from the date of the publication of the list of  Wakfs and not thereafter.  It is pertinent to note  here that in the present case no list of Wakfs has been published by  the  Commissioner  under section 6(4).   Therefore,  the limitation  prescribed  in the proviso to sub-section(1)  of section 8 has no application in the case.

   In  the present case as noted earlier, both the sects of Muslims  in  the locality have claimed the mosque its  sehan and  the  Imam  Chowk as Wakf belonging to  their  sect  and registration  of  the  properties accordingly.   It  is  not disputed  that  a  dispute of this nature comes  within  the purview of sub-section(1) of section (8) of the Act.  In the circumstances  of  the case the contentions raised  by  Shri Gupta  against maintainability of the reference made to  the Tribunal  under  section 8(1) of the Act on the ground  that such  a  reference  does  not  lie   in  the  absence  of  a publication of the list of Wakfs by the Commissioner or that the  reference  is barred by limitation cannot be  accepted. Shri  Gupta heavily relied on the decision of the  Allahabad High  Court  in  the case of Mukhtar Husain  and  ors.   Vs. Fattu  and  others  (1975  A.W.C.   462)  in  which  a  view supporting  his contention was taken and submitted that  the law  laid down in that case has held the field for all these years.   In view of the discussions made above we need  only say  that the view taken by the Allahabad High Court in  the aforementioned  case is contrary to the statutory provisions and  not  in  accord  with the intent  and  purpose  of  the legislature  as  expressed  in  the  sections.   It  is  our considered  view  that  the decision does not lay  down  the correct position of law.

   Coming to sub-section (8) of section 29 the provision in our view vests an independent right in a person aggrieved by an  order  of  the  Board under sub-section(7)  to  make  an application  to  refer  the dispute to the  Tribunal.   Such application  is  to be made within 90 days from the date  of the order by which the applicant feels aggrieved.

   In  this  regard the case of the respondents  that  they came  to know about the registration of the mosque its sehan and  the  Imam Chowk by the Sunni Wakf Board in course of  a proceeding  under  section 145 Cr.P.C.  and within  90  days thereafter they filed a dispute before the Tribunal has been accepted  by  the Tribunal and confirmed by the High  Court. There  is  little scope to disturb the findings of  fact  in these appeals.  Therefore, the contention of Shri Gupta that the  dispute raised before the Tribunal under section  29(8) of the Act was barred by limitation also cannot be accepted. No  other contention was raised on behalf of the  appellant. In  the  result  the  appeals   are  dismissed  but  in  the circumstances  of  the case without any order as  to  costs.